Sure, but what you seem to be forgetting, at least in the context of the discussion of the last couple of days, is that there was a settlement and a DISMISSAL WITH prejudice. The option to "just go forward" at that point doesn't exist.

Furthermore, considering you corrected my earlier example as not realistic, I'd ask you the same question on this topic. Why would anyone "SETTLE" their litigation based on the either you win the Markman or we win Markman or else we stay at it in litigation? Who is incentivised to settle thus? Why not just settle after the ruling when you determine who won, OR just settle it and get rid of the lawyers at that point? Who would settle, only to have to then keep paying their lawyers to stay involved in case the ruling didn't go either way? That's typically the reason for a "settlement" isn't it? To extract oneself from the litigation process with certainty? I've never heard of a settlement that said OK, we'll settle, provided at some time in the future the judge rules in one of our favors on a certain future milestone, other wise, the settlement's off.

That's not a real world situation that I've ever encountered personally or heard of others doing. Any lawyers here who think that's likely? Afterall, we have another Markman coming up in 2 months (I think).